posted at 11:21 am on February 15, 2016 by Allahpundit

I’m surprised. Since when does President Overreach demurely pass on a bold show of executive power in favor of consultation with Congress — especially when Republican senators are vowing to block anyone he sends to them?

Obama will not push through a Supreme Court appointment this week, will wait to nominate until Senate is in session -White House official

McConnell will see to it that the Senate doesn’t recess for the rest of the year, no matter how many “pro forma sessions” that requires, in order to deny O an opportunity for a recess appointment. Minor footnote, though: The Senate is in recess right now. It began on February 12, a day before Justice Scalia passed away, and isn’t set to end until February 22. Obama surely has a short list of potential SCOTUS nominees tucked away somewhere in case of a rainy day; he could, in theory, step to the podium today and send anyone he likes to the Court for the rest of the year, locking down a 5-4 liberal majority until January 2017 at the earliest. It’d be highly unusual (unprecedented, I believe) for a president to rush out a nomination to take advantage of a Senate recess, but if there’s one thing Hopenchange stands for in its late decadent phase, it’s unprecedented unilateral action. Besides, he has a ready-made excuse: “I have no choice but to make this appointment during the recess,” he’d say, “since so many Republicans, from Mitch McConnell to Ted Cruz to Marco Rubio to Donald Trump, have insisted that my nominee will not be given a fair chance at a Senate hearing.” If he nominated Sri Srinivasan, who’s been touted all weekend as a possible nominee, he could note that the Senate confirmed him 97-0 just three years ago to the prestigious D.C. Circuit. “Republicans had no objection to Judge Srinivasan in 2013,” Obama would say. “Why would they object to him now?”

But wait, you say. Didn’t Obama lose a high-stakes Supreme Court case involving dubious recess appointments not long ago? Indeed he did. That was the Noel Canning case, when he tried to appoint three NLRB commissioners during a three-day period when the Senate was holding pro forma sessions. Obama argued that pro forma sessions weren’t real Senate sessions and that the chamber was, effectively, in recess, entitling him to make the appointments. SCOTUS smacked him down, 9-0, holding that three days simply isn’t a long enough interruption of legislative business to empower the president to act and that anything less than 10 days presumptively isn’t long enough. Quote: “A Senate recess that is so short that it does not require the consent of the House is not long enough to trigger the President’s recess appointment power.” But what if the recess was exactly 10 days? And what if the House did consent to it? And what if the Senate wasn’t holding pro forma sessions over that time? Because that’s the situation we’re in right now. Read this post from law prof Elizabeth Price Foley arguing that Noel Canning isn’t a slam dunk to stop Obama under the present circumstances. One question in response is whether Sundays count as a day in the 10-day window. The Court in Noel Canning said they don’t count for purposes of the Adjournment Clause but left it slightly ambiguous whether they count for the Recess Appointment Clause. Another question I’d have is whether Obama could make his recess appointment during a 10-day recess or only after 10 full days have elapsed. In this case, the latter scenario isn’t an option: The Senate will reconvene at noon on the 22nd, exactly 10 days after it recessed, which means in theory they’d be back in session before the constitutional “window” has opened.

But let the legal eggheads hash all of that out. The political question here is why wouldn’t, or shouldn’t, Obama try a recess appointment and let SCOTUS decide? Worst-case scenario is that he loses and the Court deadlocks at 4-4 for the next nine months. In the meantime, he’d get to preen to his base about having had no choice but to act unilaterally once again because those bastard Republicans won’t give his nominee a chance. In fact, while the case is pending before SCOTUS, O could use the public spotlight to emphasize that the lawsuit could go away if the GOP simply held a hearing and voted. The best-case scenario, of course, is that the Court sides with him and Obama’s judge is seated. Since the recess appointment expires in January, Hillary would still get to argue that the fate of a durable 5-4 liberal majority turns on the outcome of the election in November. And in the meantime, seating a liberal on the Court this year could tilt several important rulings, including ones on abortion and unions, towards the left. Why shouldn’t Obama try it? What does he have to lose?

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Bye all! I’ve never booked my face, and I’ve no plans to do so. Been fun reading here for a few years, and commenting occasionally. I’ll miss some of the notable commentators and such.

12 Of making many books there is no end, and much study wearies the body.
13 Now all has been heard;
here is the conclusion of the matter:
Fear God and keep his commandments,
for this is the duty of all mankind.
14 For God will bring every deed into judgment,
including every hidden thing,
whether it is good or evil.

The political question here is why wouldn’t, or shouldn’t, Obama try a recess appointment and let SCOTUS decide?

Well the reason why he won’t do it is because it would make him look like the bad guy and cause all kinds of blow back. The smart thing for Obama to do would be to nominate Sri Srinivasan. Then when Republicans say no way, Obama will say something like “What’s the problem? You guys voted for the guy 97-0 just two years ago”.

This Congress ends January 3d, next one doesn’t start until January 20. The thinking I’ve read is that that is a recess. And as recess appointments run with each Congress, he could appoint someone then who will have two full years on the Court. Trade off 9 months for 2 years? Yeah. Especially after a track record of 4-4 non-decisions.

Now Obama can say, “See, I could have rammed through an appointment, but I decided to cooperate with the Republican Congress but now they won’t cooperate with me.”
Standard MOA for Obama. Political calculus.
Republigal on February 15, 2016 at 11:31 AM

It’s win-win for him either way – he either gets his socialist judge (who will be black, probably Eric holder) in via recess appointment or he gets a wedge issue to rally the democrat base (especially black voters) to fundraise and get to the polls.

A recess appointment would be small ball. Obama and the Dems are going to find some black/Hispanic gay one-armed female to hold up as a victim in November. They want to have a victim to Senate partisanship going into the elections. You don’t get to do that if you’ve hired a temp to do the job in February.

Hopeandchange insists that he is the reasonable man on the room while everyone else is a hyperpartisan reactionary. Hard to make that case if he fills Scala’s seat before Scala’s funeral. Also it’s one of the few cases which would prompt the Senate to come to a full halt, and the MSM for once wouldn’t back him. It would energize the Republicans beyond belief while enervating the Democrat rank and file (“Don’t worry, Barack will fix it.”) And it would set a precedent that the Democrats would really rue if they lose the next election. All for a temporary appointment that has no practical value (4-4 ties affirm the lower court, and most cases granted Cert this term are liberal rulings the conservatives wanted to overturn). No, Obama is smarter to take the high road here, make a normal hyperpartisan nomination, and demagogue any opposition or inaction.

McConnell fumbled the ball. He should have praised Obama’s constitutional duty to nominate a Supreme Court Justice and welcomed the opportunity to give them a fair hearing in the senate. And then run out the clock with the process; The same way the Obama administration operates.

McConnell fumbled the ball. He should have praised Obama’s constitutional duty to nominate a Supreme Court Justice and welcomed the opportunity to give them a fair hearing in the senate. And then run out the clock with the process; The same way the Obama administration operates.

We should already be aware and expecting that he’s going to nominate a radical socialist leftist and have his media allies brow beat congress because racism, sexism, whateverism and the Republican progressive capitulaters will acquiesce.

I hope that congress delays or refuses consent, but my expectations are low.

No way republicans block the first African American woman or Hispanic/Indian male on the supreme court.

weedisgood on February 15, 2016 at 11:40 AM

Sure, just follow the precedent set by the democrats…no sitting president shall make a supreme court appointment during recess…so let him go through the normal channels, which takes many months on the average.

August 1960, the Democrat-controlled Senate passed a resolution, S.RES. 334, “Expressing the sense of the Senate that the president should not make recess appointments to the Supreme Court, except to prevent or end a breakdown in the administration of the Court’s business.”

McConnell fumbled the ball. He should have praised Obama’s constitutional duty to nominate a Supreme Court Justice and welcomed the opportunity to give them a fair hearing in the senate. And then run out the clock with the process; The same way the Obama administration operates.

McConnell fumbled the ball. He should have praised Obama’s constitutional duty to nominate a Supreme Court Justice and welcomed the opportunity to give them a fair hearing in the senate. And then run out the clock with the process; The same way the Obama administration operates.

The political question here is why wouldn’t, or shouldn’t, Obama try a recess appointment and let SCOTUS decide?

This is easy, AP. You haven’t thought this through.

If he doesn’t do the recess appointment, then he gets to nominate someone he wants, and beat the GOP over the head for the rest of the year about how they’re obstructing his nominee. It’s a winning issue for the Democrats, particularly with the media’s help.

If he does do the recess appointment, then the GOP gets to beat the Dems over the head for the rest of the year, about how they’re circumventing due process, and the GOP gets to use it as an election issue. “Our President will remove this guy that Obama illegally put in and put in someone soooo much better.” It’s a winning issue for the GOP, and helps tremendously with GOTV.

I believe he will not use the recess appointment b/c any SCOTUS 4/5 decision will be seen as BHO’s injection of himself into the Court’s business, and will definitely motivate anti-BHO sentiment on the 1st Tuesday after the 1st Monday in November. The recess judge will determine the course of the next election.

McConnell fumbled the ball. He should have praised Obama’s constitutional duty to nominate a Supreme Court Justice and welcomed the opportunity to give them a fair hearing in the senate. And then run out the clock with the process; The same way the Obama administration operates.

supersport667 on February 15, 2016 at 11:42 AM

This. +100

Never broadcast your tactics to your opponent.

Aizen on February 15, 2016 at 11:45 AM

And Donald Trump would then become the GOP nominee. Given the level of distrust among the base, that type of response would have ignited WW III.

…once again wishing you all the best…it was fun commenting here…even if you didn’t like my “style” or the substance of my comments…frankly I didn’t really give two shits…nonetheless I appreciated being able to exercise my right to speak…

As the Titanic goes down, I shall play with the band: “Nearer My God to Thee.” Or, to put it another way, I’ll comment today since tomorrow destroys all that.

And my comment is (I know you’re waiting, bated breath and all): Obama does have something to lose if he does the recess appointment: public opinion. It would have blown up in his face, believe me (as you believe Trump). It would’ve looked like and been a dirty trick. It also would’ve stepped on the faux sorrow he and the left will have to put on during Scalia’s funeral days. Even John Dickerson would’ve found it appalling.

So he decided to put the onus on Republicans. He will “win” this game even when they don’t approve any nominee until the new president is installed because the media will not show how evil the Republicans are. This “win” will be like the left’s “wins” after a government shutdown. A week of polls that scare the crap out of the Repubs.

I’m surprised. Since when does President Overreach demurely pass on a bold show of executive power in favor of consultation with Congress — especially when Republican senators are vowing to block anyone he sends to them?

The GOP made a terrible tactical move by pre-emptively saying they would block any nominee. If Obama instituted a recess appointment they’d have some leeway to argue that was a draconian response (‘shoved down our throats’ as they claim about the PPACA.

By not doing that he can now nominate a popular highly regarded probably minority jurist and crucify the GOP when they refuse to even hold a hearing. Makes perfect sense to me.

If he nominated Sri Srinivasan, who’s been touted all weekend as a possible nominee, he could note that the Senate confirmed him 97-0 just three years ago to the prestigious D.C. Circuit. “Republicans had no objection to Judge Srinivasan in 2013,” Obama would say. “Why would they object to him now?”

And it’s hard to imagine the right having any real counterargument, frankly.

And it’s hard to imagine the right having any real counterargument, frankly.

The argument that justices are never appointed in the last year of a term has already collapsed.

Tlaloc on February 15, 2016 at 12:31 PM

That isn’t the only argument being made. It’s primarily a debate over whether a lame-duck president should appoint a new justice during an election year. The Democratic-controlled Senate in 1960 passed a resolution barring Eisenhower from doing what the progressive left now wants Obama to do. Johnson in 1968 tried to replace Chief Justice Warren who resigned from the Court a few months after Johnson withdrew from the Democratic nomination. The nomination of Abe Fortas from Associate Justice to Chief Justice failed and the Warren seat was eventually filled by Nixon. As usual, the left demonstrates that it has no principles.

Disagree in this case (though not generally). Dems are masters at peeling off GOP squishes, and some of those squishes are up for re-election and might be that much more persuadable. Much better to signal right off the bat that they are not going to allow it.

Also, since McConnell is a squish, GOP voters needed to be reassured immediately. I know I did.

Now he has to hold the line. I know, I know, but the guy wants to stay in power, and I think this protects the Senate majority far better than allowing an internal tug of war over an appointee. In order to replace Scalia with a conservative we need both an R President AND an R Senate.

That isn’t the only argument being made. It’s primarily a debate over whether a lame-duck president should appoint a new justice during an election year. The Democratic-controlled Senate in 1960 passed a resolution barring Eisenhower from doing what the progressive left now wants Obama to do. Johnson in 1968 tried to replace Chief Justice Warren who resigned from the Court a few months after Johnson withdrew from the Democratic nomination. The nomination of Abe Fortas from Associate Justice to Chief Justice failed and the Warren seat was eventually filled by Nixon. As usual, the left demonstrates that it has no principles.

Aizen on February 15, 2016 at 12:41 PM

As the saying goes, ‘politics isn’t beanbag.’ And using events from 5 decades ago to apply to modern day is not all that compelling.

This approach avoids any blow back from Dems who are not satisfied with the choice and keeps Dems from having to make excuses about why they would vote to confirm him if he were to become a permanent appointment. If the guy is a radical, the GOP will wave it like a bloody shirt. If he is a moderate the left will howl and think if “God Forbid” he ever did not vote in lock step with the other 4 progressive left rubber stamps and a decision became precedential.

He isn’t going to make a recess appointment because he is hoping President Clinton will appoint Supreme Court Justice Barack Obama to the court. Why on earth would he give the it to someone else, when, in his mind, he is clearly the most qualified for the job???

The reason why he won’t or shouldn’t is simple. He lost in Cannin 9-0. Unanimously. The full court was sending him a message. It’s one thing to do an end run around the Senate. It’s another to do so around both the Senate and the Court itself. Regardless of Scalia’s loss this is still John Roberts court. He will not tolerate any action that undermines confidence in the court. If Obama were to try popping in a recess appointment today the court itself would likely decline to seat. The lawsuit would be a fired aimed conclusion. Our system of governance is such that any 2 branches can check the third. Roberts and the full court will insist that the Senate be at a minimum given reasonable opportunity to confirm or deny the Presidential selection, because failing to do so diminishes the court. Something well on every bodies mind given the public mood this election cycle.